The Problem with Torts Over Torture

A quick response to Peggy’s very thoughtful post taking me to task for criticizing the Guantanamo Alien Tort Statute lawsuits. I think most of our disagreement is simply due to sloppy language on my part. I do think it is strange that enemy combatants will sue the U.S. in its own courts for violations committed during a period of military hostilities. For this reason, I think the lawsuits are not only remarkable, but will also have lots of problems succeeding because of various legal obstacles (particularly sovereign immunity).

I obviously agree that whether the Gitmo detainees were innocent or not, they could not legally be tortured under U.S. laws. But I also believe that the Gitmo detainees will, by filing these suits, expose themselves to discovery requests about their own behavior and association with the Taliban or Al Qaeda. Unless they are “innocent” by which I should have said “unassociated” with the groups to which Congress authorized the President’s use of military force, I just can’t imagine a U.S. jury awarding damages, even if they should.

Finally, I think these suits may have a greater effect on U.S. government policy than the Acree suits will have on foreign countries because the Gitmo suits are against the U.S. government and officials in U.S. courts. The Acree suits are against a foreign government and it is harder to imagine a foreign government in the future, probably a different government, being deterred by the threat of lawsuits in U.S. courts.

Of course, it is hard to say for sure what the effects of these lawsuits will be, and the use of foreign courts to go after U.S. officials is another interesting legal front in the war on terror.